The Antitrust Constitution
68 Pages Posted: 1 Apr 2013 Last revised: 13 May 2013
Date Written: March 15, 2013
Antitrust is today viewed almost exclusively in strictly economic terms. Under the nearly ubiquitous “rule of reason,” conduct is condemned or saved by courts largely based on their evaluation of the conduct’s effect on economic efficiency. But many aspects of antitrust law cannot be explained by efficiency analysis. The full sweep of antitrust makes sense only when one considers other values that underlie the antitrust laws, values contained in the allocation of public and private power inherent in the larger constitutional order. The paper attempts to provide a more comprehensive understanding of antitrust as policing the private exercise of regulatory power.
The paper considers both the dominant, efficiency-maximizing approach to antitrust and “societal” alternatives offered by critics. The two approaches are more alike than they are different, and gaps in both suggest a missing factor in both approaches: a recognition that a harm to competition consists of both a harm to allocative efficiency (a “market harm”) and a harm to freedom of choice (a “regulatory harm”). After developing a conception of “regulation” as control over property separated from ownership, the paper explores the constitutional law of private regulation — the constitutional prohibition against delegations of governmental power to private parties — followed by a discussion of the same principles in the specific context of antitrust and identifies the nature of the right to choice that the antitrust laws protect. The paper then considers specific implications of recognizing the role of regulatory harms in antitrust, including changes to how antitrust treats horizontal and vertical restraints and mergers, the ability to explain some cases — especially in the area of tying — often considered outliers when viewed exclusively through the lens of economic analysis, and the possibility of a renewed role for concepts that have been largely forgotten in the rise of the rule of reason, such as conduct, intent, and the role of the per se rules in antitrust.
Keywords: constitutional law, antitrust, rule of reason, per se rule
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